Civil law claims of the owner of a property burdened with transmission easement in the light of the latest Supreme Court case-law

The Civil Code in the provision of Article 305¹ provides that the real estate may be encumbered in favour of the transmission undertaking with a right entitling it to use the real estate (encumbered real estate) to a specified extent in accordance with the purpose of the transmission facilities to be built.

However, if the owner of the property refuses to give its consent to the conclusion of a contract for the establishment of an easement and it is necessary for the proper use of the transmission facilities, the transmission undertaking may claim the establishment of that easement by the General Court for an appropriate remuneration to be paid to the owner of the encumbered property, in accordance with Article 2(1)(b) of Directive 2009/65/EC. 305² C.C.

In the context of determining the amount of the said remuneration, on December 5, 2019 the Supreme Court issued an order in which it first recalled that the remuneration should be determined „on a case-by-case basis and adjusted to the circumstances, including the extent, nature and permanence of the burden, its nuisance, the impact on the restriction of the owner’s use of the property, as well as the reduction of its value. It should be considered whether the transmission facilities also serve to satisfy the needs of the owner of the encumbered property” (cf. the decisions of the Supreme Court of April 5, 2012, II CSK 401/11, of February 27, 2013, IV CSK 440/12, of February 8, 2013, IV CSK 317/12, of September 20, 2012, IV CSK 56/12, and of April 18, 2012, V CSK 190/11)

Then, going to the detailed considerations, the Supreme Court stated that the nuisance related to the transmission line outside the operating band of this easement may also be covered by the analysed remuneration, including within the controlled zone.

However, the above claim is only valid if there is a causal link between the burden of servitude and the occurrence of a nuisance, and provided that the remuneration in question does not include the prejudice which, as a result of the establishment of the controlled area, is compensated for under the provisions of Article 58 (2) and Article 63 § 3 in connection with Article 36 of the Act of March 27, 2003 on spatial planning and development.

In view of the above, any claims of owners of properties encumbered with transmission easement against transmission undertakings require a meticulous pre-trial analysis.